TB4-07957

Immigration and Refugee Board of Canada Refugee Appeal Division Commission de l'immigration et du statut de réfugié du Canada Section d'appel des réfugiés RAD File No. / N° de dossier de la SAR : TB4-07957 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person(s) who is(are) the subject of the appeal XXXX XXXX XXXX XXXX(a.k.a. XXXX XXXX XXXX) (a.k.a. XXXX XXXX XXXX) Personne(s) en cause Appeal considered / heard at Toronto, Ontario Appel instruit à Date of decision December 3, 2014 Date de la décision Panel Daniel McSweeney Tribunal Counsel for the person(s) who is(are)the subject of the appeal Eve Sehatzadeh Barrister and Solicitor Conseil(s) du (de la/des) personne(s) en cause Designated Representative(s) N/A Représentant(e)(s) désigné(e)(s) Counsel for the Minister Shaheena Virani Conseil du ministre Reasons and Decision [1] XXXX XXXX XXXX(the Appellant), alleges that he is a citizen of Somalia named XXXX XXXX XXXX, and he has appealed a negative decision of the Refugee Protection Division (RPD) dated July 25, 2014. DETERMINATION [2] The Refugee Appeal Division (RAD) finds that there is sufficient credible and trustworthy evidence before it to establish that the Appellant is XXXX XXXX XXXX, a citizen of the United Kingdom (UK), The RAD finds that, as a citizen of the UK, the Appellant is ineligible to make an appeal to the RAD, as per s. 110(2)(d.1) that indicates that: No appeal may be made in respect of any of the following: a decision by the Refugee Protection Division allowing or rejecting the claim for refugee protection made by a foreign national who is a national of a country that was, on the day on which the decision was made, a country designated under subsection 109.1(1). The appeal is dismissed for lack of jurisdiction. BACKGROUND [3] The Appellant alleges that he is a citizen of Somalia and a member of the Madhiban minority clan. The Appellant alleges that, on XXXX XXXX, 2013, his family's XXXX XXXXwas attacked by members of Al Shabaab. The Appellant ran out of the XXXX towards his uncle's home. The Appellant alleges that his mother and brother were killed as a result of the attack and his father was taken to a clinic for medical treatment. The Appellant alleges that Al Shabaab wanted to recruit the Appellant and his brother. The Appellant fears Al Shabaab. The Appellant left Mogadishu on XXXX XXXX, 2014 and went to XXXX, Kenya where he met a smuggler who brought him to Canada. The Appellant made his claim for refugee protection on May 26, 2014. [4] In its reasons, the RPD found that the Respondent was not a Convention refugee, as he did not provide sufficient credible or trustworthy evidence to establish his personal identity and nationality. The RPD made the following findings: 1. The RPD found that the evidence of the witness was rehearsed, given that one of the first people the Appellant spoke to at the XXXX XXXX XXXX XXXXknew the Appellant's father personally, and given that the first witness proposed by the Appellant was at Mr. XXXX house. The RPD found that the level of detail recalled by both the Appellant and the witness of events which occurred 14 years ago did not have the air of reality. 2. The RPD found that the Appellant could have made greater efforts to establish his personal identity and nationality. The Appellant indicated that he was in contact with his father; however, he did not provide evidence from his father, given that no one had asked him to produce such evidence. The Appellant did not provide evidence regarding the acquaintance of his father who assisted him to come to Canada. 3. The RPD found that the Appellant was able to testify about the geography of Mogadishu and that he spoke Somali. 4. The RPD found that the medical letter was not an original, and no evidence was provided as to the source of the documents in order to corroborate its provenance, and therefore it carried little weight in establishing the Appellant's identity. [5] Appeal pleadings were received on September 18, 2014. The appeal was accompanied by five original photographs as new evidence, a written statement, as well as two affidavits. In the appeal, counsel argued that the RPD erred regarding its findings related to the Appellant's identity. Specific errors included: 1. The RPD erred in its finding of fact which discounted the credibility of the witness given that the implausibility findings were not reasonable and that the RPD's conclusions regarding the meeting between the Appellant and his witness amounted to speculation. 2. The RPD erred in impugning the credibility of the Appellant because he did not obtain evidence from his father in Kenya or from the family acquaintance who helped him in Kenya. 3. The RPD erred by drawing a negative credibility inference from the Appellant's failure to provide evidence of his time in Kenya by way of his family acquaintance. 4. The RPD erred by impugning the Appellant's credibility on the basis that he could not provide corroborative evidence as this goes against the principles of the presumption of truthfulness. 5. The RPD erred by failing to take into account the letter from the XXXX XXXX XXXX XXXXin support of the Appellant's identity. [6] The Appellant asks that the new evidence be accepted and that the RAD set aside the determination and find that the Appellant is a Convention refugee or a person in need of protection. The Appellant also requests that a hearing be held based on the new evidence if the RAD is of the opinion that the new evidence raises a serious issue in regard to the Appellant's credibility. [7] The Minister provided a Notice of Intervention1 to the RAD and the Appellant on October 21, 2014. RAD Rule 4 indicates that the Minister may intervene at any time before the Division makes a decision. The Minister submitted that the Appellant was deceitful and misrepresented his identity to Canadian immigration authorities. The Appellant has not been able to produce documents to support his identity as XXXX XXXX XXXXgiven that there is biometric information from the UK Border Agency which reveals the identity of the Appellant as XXXX XXXX XXXXor XXXX XXXX XXXX. The Appellant failed to declare travel outside of Somalia prior to his exit; however, evidence from the Minister shows that the Appellant received a visa in XXXX XXXX, Ethiopia. The Appellant was the adopted child of someone who had settled or was going to settle in the United Kingdom. The Appellant traveled to Canada using a UK passport. The Minister argued that the war decision indicates that a claimant has the obligation to seek the protection of his countries of citizenship before seeking protection in Canada. There is no evidence that the Appellant sought the protection of UK authorities. In addition the Appellant did not establish that UK authorities were unable or unwilling to protect him. The UK is a signatory to the Convention and is a Designated Country of Origin (DCO). Based on the objective evidence, DCOs are democratic countries that offer state protection, have active human rights and civil society organizations, and do not normally produce refugees. The Minister submitted that state protection from UK authorities would be reasonably forthcoming. The Minister also submitted that the Appellant presented falsified information in a deliberate attempt to mislead Canadian immigration authorities and that the Appellant should not be deemed credible. The Appellant presented a false identity and deliberately withheld his UK citizenship from Canadian immigration authorities; therefore, the Minister was of the opinion that the level of deceit the Appellant has engaged in amounts to fraud, such that the claim is manifestly unfounded. [8] The RAD received correspondence2 on October 24, 2014 from the Appellant's counsel indicating that she would like to be removed as counsel of record, pursuant to Rule 19 of the Refugee Appeal Division Rules. A copy of counsel's correspondence was provided to the Appellant by hand on October 24, 2014 and to the Minister by facsimile on the same day. The request was accepted by the RAD on November 17, 2014. [9] On October 26, 2014, the Appellant submitted an application to withdraw his appeal to the RAD.3 This application to withdraw the appeal was dismissed on November 17, 2014 by the Assistant Deputy Chair (ADC) as the withdrawal would be an abuse of process. The ADC directed that the appeal be considered on its merits. Rule 5 indicates that the Appellant can reply to the Minister's intervention within 15 days after the Appellant received notice of the Minister's intervention. The RAD did not receive a response to the Minister's intervention. ADMISSIBILITY OF EVIDENCE PRESENTED ON APPEAL [10] As provided for in s. 110(3) of IRPA, with certain exceptions, the RAD must proceed without a hearing, on the basis of the record of the proceedings of the RPD and may accept documentary evidence and written submissions from the Minister and refugee claimant. Section 110(1.1) of IRPA allows the Minister to file an appeal and submit supporting documents without being subject to the restrictions on new evidence. The new evidence provided by the Minister is clearly relevant, as it goes directly to the issue of the Respondent's personal identity and nationality. [11] As outlined below, the Appellant has been found to be a citizen of the UK and therefore is ineligible to make a claim to the RAD. As such, the RAD did not consider the pleadings or new evidence included in the Appellant's appeal. Requirement to Hold an Oral Hearing [12] The RAD considered the evidence included in the Minister's intervention. New documentary evidence can justify holding an oral hearing, pursuant to s. 110(6) of IRPA, which states: 110(6) The Refugee Appeal Division may hold a hearing if, in its opinion, there is documentary evidence referred to in subsection (3): (a) that raises a serious issue with respect to the credibility of the person who is the subject of the appeal; (b) that is central to the decision with respect to the refugee protection claim; and (c) that, if accepted, would justify allowing or rejecting the refugee protection claim. [13] The RAD finds that, although all of the 110(6) factors have been met by the Minister's evidence, the discretionary nature of the section allows the RAD to determine that an oral hearing is not required. The purpose of oral hearings before the RAD is to ensure that the Division does not come to conclusions on serious issues of credibility with respect to a person who is a subject of the appeal unfairly, that is, without giving that person the opportunity to respond to the credibility concerns. In the case at hand, the Appellant has not responded to the evidence presented by the Minister other than requesting to have the appeal withdrawn. Given the Appellant's failure to respond to the evidence provided by the Minister, the RAD finds that convening a hearing would serve no purpose. Analysis of the Minister's Evidence [14] The RAD reflected on the evidence before it regarding the Appellant's citizenship. Section 106 of IRPA indicates: 106. The RPD must take into account, with respect to the credibility of a claimant, whether the claimant possesses acceptable documentation establishing identity, and if not, whether they have provided a reasonable explanation for the lack of documentation or have taken reasonable steps to obtain the documentation. [15] One of the key issues for the RAD to consider was the weight and value to place on the biometric evidence. [16] The Appellant affirmed at the hearing that he was XXXX XXXX XXXX, a citizen of Somalia and no other country. The Minister submitted documents4 obtained as a result of the sharing of the Respondent's fingerprints with authorities in the UK which it alleges undermines the Respondent's claim to be a citizen of Somalia and no other country. [17] The FCC Report5 revealed that a biometric match of the Respondent's fingerprints was found in the records of the UK Border Agency. The Respondent's fingerprints matched those of XXXX XXXX XXXX(alias XXXX XXXX XXXX) born in Somalia on XXXX XXXX, 1992. The report indicated that the person made an application in XXXX XXXXon XXXX XXXX, 2007 for a visa as an adopted child of someone settled or going to settle in the UK. The person entered Canada on XXXX XXXX, 2014 at XXXX using UK passport no. XXXX. [18] The documentary evidence provides a photo of XXXX XXXX XXXX. The RAD compared the photo to the photos in the Respondent's IMM00086 and found that the photo appears to be the same person in the Minister's document. This further supports the finding that the Respondent is the same person as XXXX XXXX XXXX, a citizen of the UK. [19] The RAD considered the evidence provided by the Minister and notes that no expert evidence or submissions with respect to the methodology used to obtain biometric information in general, or regarding the policy which enables the sharing of biometric data between countries or the reliability of this data was provided. Given the Appellant's lack of participation in the appeal, there is no evidence or submissions before the RAD to undermine the reliability of the Minister's evidence. The RAD finds that this new evidence is both credible and trustworthy given that it came from a reliable source (UK Border Agency) and was obtained through a fingerprint match. [20] The RAD finds that the presumption of the truthfulness of the Appellant, as per Maldonado,7 has been rebutted by the evidence presented by UK authorities. Furthermore, the lack of participation by the Appellant in response to the Minister's evidence that he is XXXX XXXX XXXX, a citizen of the UK, other than a request to withdraw his appeal as he is no longer claiming refugee protection, is a tacit admission that false information about the Appellant's true personal identity and his nationality was provided to the RPD as established by Justice Shore in Ma:8 Reasonableness dictates that in the case of the Immigration and Refugee Board (and all its divisions), although the rules of evidence in its regard are relaxed, nevertheless, when evidence is available, or could be made available but not produced, or when a person can testify, is given the opportunity to testify, but does not testify, then an adverse inference can be drawn. [21] Given the analysis above, the RAD finds that, on a balance of probabilities, the Appellant XXXX XXXX XXXX, is the same person as the UK citizen, XXXX XXXX XXXX. Admissibility of Appeal and Disposition [22] Section 110(2)(d.1) indicates that: No appeal may be made in respect of any of the following: a decision of the Refugee Protection Division allowing or rejecting the claim for refugee protection made by a foreign national who is a national of a country that was, on the day on which the decision was made, a country designated under subsection 109.1(1). [23] Given that the Appellant has been found to be XXXX XXXX XXXX, a citizen of the UK, and given that the UK is a Designated Country of Origin, the RAD finds that the Appellant is ineligible to have his claim assessed by the RAD. As such, the RAD dismisses the Appellant's appeal for lack of jurisdiction. (signed) "Daniel McSweeney" Daniel McSweeney December 3, 2014 Date 1 Exhibit M-1, Notice of Minister's Intervention and Supporting Documents. 2 Exhibit P-3, Letter from Counsel. 3 Exhibit P-4, Application to Withdraw Appeal. 4 Exhibit M-1, Notice of Minister's Intervention and Supporting Documents. 5 Exhibit M-1, FCC Report dated July 28, 2014. 6 RPD's Record, IMM0008, Generic Application Form for Canada, p. 52. 7 Maldonado, Pedro Enrique Juarez v. M.E.I. (F.C.A., no. A-450-79), Heald, Ryan, MacKay, November 19, 1979; [1980] 2 F.C. 302 (C.A.); 31 N.R. 34 (F.C.A.). 8 Ma, Phat Thoai v. M.C.I., (F.C., no. IMM-1839-09), Shore, May 11, 2010; 2010 FC 509. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (June 23, 2014) RAD File No. / N° de dossier de la SAR : TB4-07957